Dear John: Thank you for your submission regarding a variety of proposed changes to this Working Group's Charter. Our understanding from discussions with staff is that, while there is no set requirement for the level of support within a WG required to request that GNSO Council consider a Charter revision, such revisions are relatively rare and have in the past been supported by a substantial majority of WG members in the absence of significant opposition prior to transmission to Council for its consideration. We therefore strongly encourage all WG members to carefully review your proposal and, regardless of whether one supports or opposes it, to provide some feedback to the full WG email list so that we can begin to gauge overall support. Such email discussion can be preliminary to a full WG oral discussion on a call sometime in late April or early May, if there are indications of substantial support within the WG and a desire to engage in further discussion. The full WG will resume its regular Wednesday calls by mid-April (we anticipate April 18), after the URS Documents, Practitioners and Providers sub-teams have completed their current work. We also note that your proposal raises multiple issues, including: * Amendment of the WG Charter to move the URS review and recommendations to Phase II * Amendment of the WG Charter to define issues that must, may, and may not be addressed * Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review * Adjustment of the WG leadership structure for Phase II * Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. Finally, regardless of whether there is substantial support within the WG for any of the elements of your proposal, we agree that the impending enforcement of GDPR raises substantial WHOIS data access issues for trademark owners and for URS and UDRP dispute resolution providers. The issues for trademark owners are currently being discussed within the full ICANN community regarding interim and final compliance models, the latter involving accreditation and tiered data access. In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN's CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. Best regards, Philip & Kathy Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of John McElwaine Sent: Thursday, April 05, 2018 9:55 PM To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: [EXTERNAL] [gnso-rpm-wg] Proposal to Shift URS review to Phase II Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group's charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The "third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program." 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group ("RPM Working Group"). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP's Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP's Charter were broadly defined: "In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future." 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled "LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP" This "list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue". This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a "cybersquatter"? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group "should look like". (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS ("Transcript") at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have "more defined issues, [be] more bounded, more limited." (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that "that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience." (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant's country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder's product. 4. Cannot determine on what date the domain name was "registered" by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a "competitor" that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <http://www.nelsonmullins.com/img/ecard-logo.png> JOHN C. MCELWAINE PARTNER john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. 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